October 31, 2010

Notice Of Appeal Saves Doctor From Forfeiting Reversal Argument

A baby sustained serious injuries at birth. His parents sued the doctor who performed the delivery for medical malpractice. The parents got a favorable trial verdict, so the doctor appealed.

In the appellate court, the doctor claimed he should have been awarded a directed verdict by the trial court “because there was a total failure of proof on the element of proximate causation.” But the doctor’s brief asked for a new trial, but did not ask the appellate court to reverse based on insufficient evidence.

The Second District Illinois Appellate Court ruled that the doctor forfeited “in [his] brief” the argument that the judgment should be reversed for lack of evidence. The court then reviewed the doctor’s notice of appeal, which did ask to “vacate or reverse the judgment, to enter judgment notwithstanding the verdict in their [parent’s] favor … and to grant any other relief warranted by the applicable law and record on appeal.”

The appellate court acknowledged that notices of appeal should be construed liberally, and decided to consider the doctor’s “alternative argument that they [doctor] are entitled to a directed verdict or a judgment n.o.v. [notwithstanding the verdict].”

The lesson is: Make sure your notice of appeal asks for a broad range of relief. There should be no harm done if you later decide to forego some aspect of the relief requested in the notice. But if it arguably is not there, you might unwittingly be forfeiting it.

Get the whole opinion, Northern Trust v. Burandt and Armbrust, No. 2-08-0193 (7/27/10), by clicking here.

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October 28, 2010

State May Appeal No-Probable-Cause Order In Sexually Violent Person Commitment Action

Tommy Hardin had been convicted of aggravated sexual crimes three times. Just before his mandatory supervised release period, the State petitioned for Hardin’s civil commitment under the Illinois Sexually Violent Persons Commitment Act.

After an evidentiary hearing, the trial court ruled there was no probable cause to believe Hardin was a sexually violent person who was likely to re- offend. So a trial on the State’s commitment petition was not held, and the court ordered Hardin to be released and placed on supervision.

The State appealed the finding of no probable cause. Hardin asked the appellate court to dismiss the appeal for lack of jurisdiction. He argued alternative reasons: (1) the Sexually Violent Persons Commitment Act does not authorize the State to appeal a finding of no probable cause; (2) the order in this case was not final and appealable. The Second District Illinois Appellate Court denied Hardin’s request to dismiss, and reversed the trial court’s finding of no probable cause.

Hardin then appealed to the Illinois Supreme Court, which affirmed the appellate court’s decision. The supreme court agreed there was jurisdiction to consider the State’s appeal. The court rejected Hardin’s argument that the no-probable-cause finding could not be appealed because the Act did not specifically authorize it.

[T]he primary error in respondent’s [Hardin’s] argument is his reliance on the statute’s purported silence. His argument overlooks express statutory language affirmatively stating that “[t]he proceedings under this Act shall be civil in nature … Thus, the Act is not silent about the applicable rules, as respondent claims, but rather directs us to consider the applicable civil provisions.

The Illinois Supreme Court also rejected Hardin’s argument that the no-probable-cause finding was not appealable because it was not a final order. “First, his [Hardin’s] analogy to adverse rulings in criminal probable cause hearings fails because it ignores the statute’s plain directive to apply civil law …” Second, the court ruled, the no-probable-cause finding was final because “the State’s petition [for commitment] had to be dismissed … effectively terminating the litigation and defining both parties’ rights, leaving only enforcement of the judgment.”

In the end, a unanimous supreme court ruled there was sufficient evidence that probable cause existed, so the case was sent back to the trial court for trial on the State’s commitment petition. Read the whole opinion, In re Detention of Hardin, No. 108615 (6/24/10), by clicking here.

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October 20, 2010

No Appellate Jurisdiction Over Landlord Not Explicitly Identified On Notice Of Appeal

Andrea Coleman sued Christina Udoh and her husband, Nsikak Akpakpan, for violating the Chicago Residential Landlords and Tenants Ordinance. The case was arbitrated, and Coleman was awarded $20,600. The trial court barred Udoh and Akpakpan from rejecting the arbitration award, so they appealed.

Representing herself, Udoh filed her own notice of appeal. She did not write Akpakpan’s name on the notice. Nor did he file his own notice of appeal. Coleman claimed there was no appellate jurisdiction to hear Akpakpan’s appeal. The First District Illinois Appellate Court agreed. Here’s the appellate court’s explanation:

Where the notice of appeal clearly names only one party as appellant, the court considers the appeal to be taken only by the named party … In the absence of a separate notice of appeal filed by Mr. Mr. Akpakpan and the failure of the notice of appeal filed by Ms. Udoh to name him as an appellant and to include his signature or the signature and address of his attorney [required by Illinois Supreme Court Rule 303(b)(4)], Mr. Akpakpan is not a party to this appeal. We will consider this appeal only as to Ms. Udoh, and the judgment against Mr. Akpakpan will not be affected by its outcome.

In the end, the judgment was affirmed, so the lack of jurisdiction over Akpakpan’s appeal did not matter. But in any event, the lesson is: Always identify by name the parties who are appealing. And if you’re filing your notice of appeal without a lawyer, make sure that all parties who are appealing sign the notice, or file their own. The whole case, Coleman v. Akpakpan, No. 1-09-2629 (6/30/10), is available by clicking here.

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October 14, 2010

Manifest-Weight-Of-The-Evidence Standard For Review Of Denial Of Request To Vacate Judgment

Clarence Domingo sued the builder of his house, Vito Guarino, for breach of contract and violation of the Illinois consumer fraud act. Clarence got a default judgment, which Vito tried to get vacated under Illinois Code of Civil Procedure § 2-1401. The trial court held an evidentiary hearing on Vito’s request, then refused to vacate the judgment. So Vito appealed.

The first issue on appeal was the proper standard of review. The Second District Illinois Appellate Court acknowledged a split among courts on the question, then threw its hat on the side of the manifest-weight-of-the-evidence standard.

The whole opinion, Domingo v. Guarino, No. 2-09-0852 (6/25/10), is available by clicking here.

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October 10, 2010

Trial Court’s Dismissal Of Appeal Deprives Appellate Court Of Jurisdiction

Bernstein and Grazian had a falling out, so they folded their law practice. Grazian started his own firm, and took some cases with him from the firm he had with Bernstein. The two lawyers fought over how much each should be paid for those files. Bernstein sued Grazian, who countersued Bernstein. Unhappy with the result in the trial court, Bernstein appealed. Grazian filed a counter appeal.

Under Illinois Supreme Court Rule 309, Bernstein asked the trial court to dismiss his appeal. The trial court obliged, but Bernstein told the appellate court his request to dismiss his appeal was a mistake. He asked the appellate court to reinstate his appeal. A single judge of the appellate court obliged that request . But Grazian asserted the earlier dismissal by the trial court deprived the appellate court of jurisdiction to reinstate the appeal.

The First District Illinois Appellate Court agreed with Grazian. Here is the court’s rationale:

Once the trial court properly dismissed Bernstein’s appeal pursuant to Rule 309 upon his own motion, it was as if Bernstein had never filed a notice of appeal in our court. Instead … jurisdiction revested with the trial court. The only recourse for Bernstein, then, to move jurisdiction to our court was to petition the trial court to vacate its dismissal or … file another notice of appeal from the original judgment in the cause – some similar action taken within 30 days of the trial court’s final and appealable order dismissing his appeal.

The lesson is: The appellate court cannot regain jurisdiction after the trial court has legitimately dismissed a notice of appeal under authority given by Illinois Supreme Court Rule 309. Read the whole opinion, which includes a host of other jurisdictional arguments, Bernstein and Grazian v. Grazian and Volpe, No. 1-09-0149 (6/25/10), by clicking here.

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